“life is a comedy to those who think and a tragedy to those who feel” Horace Walpole

Procreation: A Counter Argument

And now I would like to devote another post, as a follow up to previous ones, on refuting the argument that the purpose of civil marriage is procreation, as the Maryland Supreme Court found.

Opponents to same sex marriage also argue that the prohibition of gay couples from marrying rests on the fundamentally procreative purpose of marriage. In denying a gay couple’s petition for a marriage license in Singer v. Hara, the Washington Court of Appeals held that, “marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.

Further, it is apparent that no same-sex couple offers the possibility of the birth of children by their union. Thus the refusal of the state to authorize same-sex marriage results from such impossibility of reproduction.”[1] That marriage “uniquely involv[es] the procreation and rearing of children within a family” supposedly provides “a clear distinction between a marital restriction based merelyupon race and one based upon the fundamental differencein sex.”[2]

However this argument falls short. Outside of the context of the debate over same-sex marriage, procreation is not, and never has been, a precondition for marriage. In applying for a marriage license, couples are not required to prove either their ability or intent to have children. As of 1998, there were 5.7 million married couples within the child-bearing age that did not have children.[3] That is roughly ten times the number of same sex couples recorded in the United States in 2000.[4] This is largely related to the standard set by Roe v. Wade, and the cases which follow from it, which establish the constitutional right of privacy. Marriage is protected regardless of whether or not children are produced because the decision to beget children is a private matter, free from state coercion.[5]

If procreation were in fact the fundamental reason for marriage, one would expect the inability to procreate to be primary grounds for divorce. However, an examination of state domestic relation laws shows that this has never been the case. Between 1969 and 1985, each of the fifty states enacted no-fault provisions to their divorce codes.[6] The Uniform Marriage and Divorce Act (UMDA), established that a court shall dissolve a marriage upon finding that the marriage is “irretrievably broken” based on evidence of “serious marital discord adversely affecting the attitude of one or both of the parties toward that marriage.”[7]

Thus, the UMDA treats the relationship between spouses as the sole determinant of a viable marriage. The UMDA is explicit in stating that it “intentionally makes no distinction between childless marriages and those with minor children.”[8] The couple’s procreative achievements are entirely irrelevant in determining when a marriage is “irretrievably broken.”

Even states that still do adopt a system of fault-based divorce do not recognize the inability to conceive as grounds for the dissolution of a marriage. For example New York offers only four fault-based grounds for divorce: “cruel and inhuman treatment of the complaining spouse; abandonment for at least a year, confinement in prison during the marriage for three consecutive years, and voluntary commission of an act of adultery.”[9] Again, all of these grounds relate to the quality of the relationship the spouses share, not their ability to produce children.

Infertility is similarly not a ground for annulment. While impotence is grounds for annulment in many jurisdictions, infertility is not.[10] As noted in the case of Wendel v. Wendel:

It is a fact well known to medical science, and familiar in our common experience, that every woman passes through a climacteric period . . . after which she is incapable of conception, and yet it has never been suggested that a woman who has undergone this experience is incapable of entering the marriage state . . . . It seems to us clear, therefore, that it cannot be held, as a matter of law, that the possession of the organs necessary to conception are essential to entrance to the marriage state, so long as there is no impediment to the indulgence of the passions incident to that state.[11]

The issue of sexual intimacy is again related to the quality of the relationship a couple shares. The express denial that procreation is required for marriage is yet again clear.

Another way by which we can evaluate the claim that the primary purpose of marriage is procreation is to examine co-parenting laws. Whereas the possibility of joint parenthood is seen as a necessary precondition for marriage when speaking about same sex couples, the opposite is often the case for opposite sex couples. In Michael H. v. Gerald D., the Supreme Court upheld a California statute which held that a child born to a married woman is also the legal child of her husband, regardless of whether or not her husband is the biological father, stating that “given a certain relationship between the husband and wife, the husband is to be held responsible for the child, and . . . the integrity of the family unit should not be impugned.” The Court went further saying, “Where . . . the child is born into an extant marital family, the natural father’s unique opportunity [to develop a relationship with his offspring] conflicts with the similarly unique opportunity of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter.”[12]

In this case, as well as in similar cases such as those involving artificial insemination, parenthood is determined by marital status, even when biological joint parenthood is impossible. However, when it comes to same sex marriage, opponents insist on arguing the opposite, that for same sex couples marital status must be determined by the couple’s ability to produce joint biological children.

It is significant that opposite sex couples who are unable to produce biological joint children are similarly situated as same sex couples. Each can produce children, either through artificial insemination or adoption, but those children can never be biologically related to both parents.

The only difference between these similarly situated couples is that heterosexual couples are granted the legal status and protection of marriage whereas the homosexual couples are not. It should be noted that many states now allow for co-parent adoption, in which the gay partner of a child’s biological parent may also be considered a parent to that child. In Michael H. v. Gerald D, that is a given for married couples. It is ironic that both partners making up a gay couple may establish legal connections to the biological child of one, but they are not granted a legally binding status to one another.

While opponents of gay marriage speak of the fundamentally procreative nature of marriage, which supposedly fundamentally distinguishes gay couples from straight couples, they ignore how straight couples that do not or cannot create joint biological children are functionally the same as gay couples in terms of parenthood.